An Examination of the Ethical Implications for Segregation Units in Canadian Federal Prisons by Ian Stuart Bachelor of Arts in Criminal Justice, the University of the Fraser Valley, 2013 MAJOR PAPER SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS (CRIMINAL JUSTICE) In the School of Criminology and Criminal Justice © Ian Stuart, 2018 UNIVERSITY OF THE FRASER VALLEY Winter 2018 All rights reserved. This work may not be reproduced in whole or in part, by photocopy or other means, without permission of the author. Approval Name: Ian Stuart Degree: Master of Arts (Criminal Justice) Degree Title: An Examination of the Ethical Implications for Segregation Units in Canadian Federal Prisons Examining Committee Amy Prevost, PhD GPC Chair Associate Professor, School of Criminology and Criminal Justice ____________________________________________________________ Zina Lee, PhD Senior Supervisor Associate Professor, School of Criminology and Criminal Justice ____________________________________________________________ Corinne Justason External Examiner Deputy Warden Correctional Service of Canada ____________________________________________________________ Date Defended/Approved: April 19, 2018 ii Abstract In January 2018, the B.C Supreme Court ruled the use of administrative segregation in Federal Corrections for long-term or indefinite durations as unconstitutional. While administrative segregation is used as an offender management strategy by the Correctional Service of Canada (CSC) to maintain a safe and secure environment, the conditions of confinement may pose a risk of psychological harm for the isolated inmate occupant. Under the ethical guidance of a deontological framework, the risk of psychological harm outweighed the institutional impact of administrative segregation. While psychological harm is an important consideration, it may be more effective to evaluate the use of administrative segregation under the framework of therapeutic jurisprudence. After examining the practice of administrative segregation within Canada and abroad, a summary of the recent court ruling is provided, as well as a review of the literature regarding the factors associated with administrative segregation. Finally, the application of therapeutic jurisprudence to the use of administrative segregation is explored and recommendations are provided. iii Acknowledgements I would like to thank my Major Paper Supervisor Dr. Zina Lee. She was always available to answer questions regarding research or writing. Dr. Lee had an open door policy and provided effective feedback through email. Her guidance was imperative to the completion of this document. I would also like to thank my wife and family for providing me with continuous support and encouragement throughout my education. I would not have finished without them. I thank the faculty and my fellow cohort members of the Masters program for allowing the exploration of various research topics for a major paper. Lastly, I would like to thank my co-workers and management team within the Correctional Service of Canada who provided comments on my paper and allowed flexibility in my work schedule to accommodate the classroom schedule. . iv Dedication This paper is dedicated to all those impacted by administrative segregation under the Correctional Service of Canada. This includes both the correctional staff that run the segregation units as well as the inmates who reside within them. v Table of Contents Abstract ....................................................................................................................................................................iii Acknowledgements.............................................................................................................................................. iv Introduction ............................................................................................................................................................ 1 Segregation in Canadian Federal Corrections: Current Practice ......................................................... 4 International Standards ................................................................................................................................... 10 Defining Segregation in the Literature and Abroad ............................................................................... 13 British Columbia Civil Liberties Association (BCCLA) v. the Government ..................................... 18 Psychological Harm ........................................................................................................................................... 23 Development of New Disorders .................................................................................................................. 26 Exacerbating Symptoms of Pre-Existing Mental Illness ..................................................................... 33 Self-Harm and Suicide....................................................................................................................................... 35 Segregation and Prison Order ....................................................................................................................... 40 Inmate Victimization ......................................................................................................................................... 47 Inmate Dynamics and the Role of STGs ...................................................................................................... 50 Ethical Frameworks........................................................................................................................................... 53 Recommendations ............................................................................................................................................. 59 Bibliography ......................................................................................................................................................... 67 vi Introduction The Canadian criminal justice system has undergone numerous revisions since its establishment in order to promote values that align best with a democratic society. The system must be able to consider the rights of victims, offenders, and members of the general public while maintaining public safety. Furthermore, the system must incorporate a variety of goals such as retribution, deterrence, and rehabilitation (Roach, 2000). Although the Canadian Charter of Rights and Freedoms serves as a foundation for a unified approach to achieve these often conflicting goals, the complexity in applying the Charter pragmatically calls for additional perspectives when developing and administering policy (Roach, 2000). The ability to accurately assess public opinion, preceding case law, and credible research is required for the justice system to be successful in achieving its goals. The Correctional Service of Canada (CSC) is one branch of the justice system that must continually balance the duty to protect the public with the duty to preserve the fundamental freedoms of offenders. CSC is responsible for housing federally incarcerated inmates and inmates with a sentence of 2 years or greater, as well as monitoring offenders in the community who are granted a conditional release. Although CSC’s mandate includes rehabilitation and reintegration, the physical characteristics and structured atmosphere of institutions (e.g., bars, barriers, rules, and routines) create an image that the institution is inherently punitive by nature and that security is the institution’s primary goal as opposed to fostering an environment that promotes rehabilitation (Elliot, 2007). Rehabilitation efforts will likely be hindered if inmates’ rights are not considered. Although maintaining security is a necessary and immediate priority, as correctional programming cannot be 1 delivered in an unsecure prison environment, the reality that most federal inmates will be released into the community requires rehabilitation to be an equally important priority. This balance of individual rights and collective security forms the basis of the debate of whether administrative segregation is appropriate for CSC law and policy. Commonly referred to as solitary confinement, the ethics of segregation has been questioned as a result of various incustody deaths. Ashley Smith, for example, died from self-strangulation while housed in administrative segregation for 11 months (Cheung, 2017). Sapers (2008), the top correctional investigator of Canada at the time, reported the death of Ashley Smith was preventable and attributed long-term administrative segregation as a significant factor. Ashley’s death was a result of multiple individual and system failures of CSC (Sapers, 2008), and her death was ruled a homicide by an Ontario Coroner (Cheung, 2017). Fine and White (2015) of the Globe and Mail reported that Prime Minister Justin Trudeau gave direction for federal corrections to consider recommendations of the Ashley Smith Inquiry, which included the abolition of solitary confinement occurring beyond 15 days and the exemption of its use for inmates with serious mental illness. The West Coast Prison Justice Society (2016) published a document calling for the abolition of solitary confinement with reference to the suicides of federal inmates Edward Snowshoe and Christopher Roy, both occurring while subjected to long-term placement in administrative segregation. In addition, the United Nations (2015) Human Rights Committee published a report expressing concerns about the frequent cases of administrative and disciplinary segregation that persist for extended periods of time or involve mentally ill inmates. One side of the debate views segregation as inhumane torture that results in psychological distress for inmates, while the other side regards segregation as a necessary mechanism to 2 maintain order and safety within the prison. As a result of this debate, civil suits have been filed against various Canadian jurisdictions to end long-term and prolonged solitary confinement. In particular, the British Columbia Civil Liberties Association filed suit against the Federal Government and in January of 2018, the British Columbia Supreme Court ruled that prolonged or long-term administrative segregation was unconstitutional (British Columbia Civil Liberties Association v. Canada, 2018). The court also ruled that inmates designated as mentally ill or disabled are not to be placed under segregation for any amount of time. The court granted a 12-month grace period before the ruling becomes effective, as the government stated that a considerable amount of time is required to prepare for safe and reasonable alternatives when the use of administrative segregation is restricted. However, Hager (2018) of the Globe and Mail reported that the Canadian Government filed notice to appeal this decision, despite Prime Minister Trudeau’s initial direction. With specific attention to this court case, this paper will critically analyze the use of segregation in Canadian institutions. The first section will define segregation and provide a context for its application. The next section, with consideration of ethical frameworks, will examine the consulted evidence and final decision in the recent court case, British Columbia Civil Liberties v. Canada (2018). A review of the literature relevant to issues associated with the use of segregation, as well as the managerial benefits of segregation, will be provided to examine opposing perspectives. After considering ethical frameworks and the relevant research, recommendations for alleviating the issues of administrative segregation will be proposed. 3 Segregation in Canadian Federal Corrections: Current Practice Canadian segregation serves as a management strategy for disciplinary and administrative purposes. The legislation dictating the use of segregation is the Corrections and Conditional Release Act (CCRA) (1992). Disciplinary segregation is defined under section 44 (f) of the CCRA (1992) as segregation from other inmates that results from a serious disciplinary offence. The designation of a serious disciplinary offence, as opposed to a minor disciplinary offence, is made under the discretion of the Institutional Head (Warden or delegate) when an informal resolution is not appropriate (CCRA, 1992). Under this legislation, disciplinary segregation is limited to a maximum of 30 days and authorizes the restriction of visits from persons residing outside the institution. The purpose of administrative segregation, as outlined under section 31 (1) of the CCRA (1992), is to disallow an inmate to associate with other inmates in order to maintain the security of the penitentiary or for the safety of any person. While there is no maximum time specified, section 31 (2) mandates that an inmate is to be released from administrative segregation as soon as possible. The CCRA grants the authority to the Institutional Head to order the confinement of an inmate to administrative segregation. For this authority to be lawful, there must be no reasonable alternative available and the Institutional Head must have reasonable grounds to believe: (a) the inmate has acted, has attempted to act or intends to act in a manner that jeopardizes the security of the penitentiary or the safety of any person and allowing the inmate to associate with other inmates would jeopardize the security of the penitentiary or the safety of any person; 4 (b) allowing the inmate to associate with other inmates would interfere with an investigation that could lead to a criminal charge or a charge under subsection 41(2) of a serious disciplinary offence; or (c) allowing the inmate to associate with other inmates would jeopardize the inmate’s safety. (CCRA, 1992, s. 31 (3)) The policy that provides direction for the use of disciplinary segregation, as mandated by the CCRA (1992), is under Commissioner’s Directive (CD) 580, Discipline of Inmates. This policy provides the framework for the two disciplinary segregation processes: informal and formal. An informal resolution, or an attempt at an informal resolution, must be considered in any charge of a disciplinary offence. If an informal resolution is not applied, a reason must be documented for why it was not applicable or appropriate under the circumstances. An informal resolution may include restriction of movement to a particular area or cell (referred to as voluntary lock up), must be reported immediately to the Institutional Head, and cannot exceed 8 hours unless approved by the Institutional Head. Where an informal resolution is not sufficient, the formal disciplinary process will commence. The reason to proceed formally must be documented, with consideration of mental health issues, and a report is submitted to the Correctional Manager. In addition, the inmate must be informed of the decision to proceed formally. Due process rights for the formal disciplinary process include the opportunity for an inmate to attend a hearing, enter a guilty or not guilty plea, question witnesses, introduce evidence, call on witnesses, examine documents relevant to the infraction (unless there is a security concern), and make relevant submissions at any point during the hearing. The inmate’s 5 counsel is permitted to participate to the same extent as the inmate. Disciplinary processes involving minor offences are conducted by the Institutional Head or delegate whereas an Independent Chairperson (ICP) conducts those involving serious offences. Sanctions for a disciplinary infraction include a warning or reprimand, a loss of privileges, an order for restitution, a fine, performance of extra duties, and in the case of serious disciplinary offences, segregation from other inmates. Although an inmate can grieve the decision for a minor infraction, an inmate cannot grieve a decision rendered by the ICP. However, under the discretion of the ICP, a case can be reopened as a result of new evidence or evidence of procedural error. According to CD 580, last revised in 2015, inmates sanctioned to disciplinary segregation have the same rights as inmates housed in general population, with the exception of associating with other inmates. In addition, rights may be restricted further as a result of the condition of confinement of the particular administrative segregation unit, specific security concerns, or conditions imposed by the ICP. Personal cell effects, which refer to inmates’ personal belongings which they are entitled to have with them in their cells, must be administered within 5 days; however, they are often provided as soon as practical. Lastly, inmates placed under disciplinary segregation are entitled to access spiritual support (including Aboriginal Elders and Chaplains), yard time, shower, healthcare, education, and mental health services. The policy directing the use of administrative segregation falls under CD 709 and is much more in depth due to the greater amount of safeguards in place. This policy has undergone a number of revisions, whereby the most recent changes came into effect on August 6 1, 2017. Admissions to segregation must be documented with a clear, credible, and persuasive explanation, which considers the inmate’s mental health needs, gender, and cultural or linguistic differences, with specific attention to women and Aboriginal inmates. Admissions must satisfy the terms specified by the Segregation Assessment Tool (SAT). The SAT is a comprehensive checklist that uses 38 items to help ensure an admission to administrative segregation is in compliance with CCRA section 31 (3). The items are spread out over 6 sections: (1) reason for admission, (2) establishing the facts, (3) risk assessment, (4) alternatives, (5) consultation, and (6) additional considerations. Many of the items require a yes or no response, or high, moderate, and low judgment, depending on the context of the item. When the answer to an item is a “no” or “low,” the tool will result in a “segregation not recommended” response. For example, under section 4, if the consideration of a change in unit is answered “no,” then segregation is not recommended. In section (3), if the likelihood that the threat will actualize if the inmate is not segregated is answered as low, segregation will not be recommended. For other items, such as whether a Native Elder was consulted, the tool requires an explanation and adequate documentation if the response is no. When an inmate is placed in segregation, a healthcare professional and parole officer must be consulted. If the parole officer or healthcare professional is unavailable, this consultation must occur within one working day. The consultation may also include elders, chaplains, or any relevant staff member. The healthcare professional is responsible for providing an opinion as to whether any mental health issues are present that may prevent an administrative segregation placement. Upon admission to administrative segregation, an inmate is informed of their right to legal counsel or opportunity to contact legal counsel and their right to submit complaints and grievances regarding the 7 conditions of confinement. Inmates are entitled to spiritual rights, such as the right to have access to spiritual advisors and spiritual practices of their preference (e.g., smudging). The inmate is also informed of their other rights, such as their right to engage an advocate to assist with the institutional segregation review process, to access organizations that advocate on the behalf of inmates, and to access programs, services, and visits, unless there are safety or security concerns. The circumstances regarding the segregation placement are entered into the Offender Management System (OMS), an electronic information system used universally throughout CSC, and the inmate will receive the reasons for their placement into administrative segregation in writing within one working day of their placement. Lastly, a parole officer must meet with the inmate within two working days of their placement to discuss how to facilitate reintegration back into general population as soon as possible. The conditions of administrative segregation confinement are also detailed in CD 709. In this section, the policy outlines the responsibility for staff to provide personal effects pertaining to hygiene, spirituality, medical care, and any non-electronic items that do not pose a security concern. Items that do pose a potential security concern (e.g., personal razors) are held in the control post of the segregation unit and provided to the inmate during the necessary time (e.g., shower time). The remainder of their personal property (e.g., televisions and stereos) must be provided within 24 hours of admission to administrative segregation. Inmates are entitled to 2 hours of yard time, inside or outside depending on weather conditions, and additional time for one shower per day. The Institutional Head or delegate and a healthcare professional are responsible to attend segregation every day and visit each inmate. Inmates are entitled to their prescribed medications, whether it is self-managed, taken under 8 direct observation, or a part of their opiate substitute treatment (OST). A correctional officer is responsible for completing a minimum of one security round every hour of the segregation unit, where each inmate must be verified to be alive and breathing. This officer is also responsible to attend a segregation cell when a cell call is initiated (in-cell alarms initiated by an inmate that communicate to the control post) and when a fire alarm is signalled. In addition, a minimum of two correctional officers are required to staff the segregation unit during times of movement and feeding. Inmates will be moved from their segregation cell to the yard, shower, or an office with their hands restrained with handcuffs in the front. If a significant threat to safety is apparent, the inmate will be moved with his hands restrained behind the back. Unless there are security issues concerning incompatibility, inmates may be allowed to be moved to the same yard as others held in segregation. Under the policy directive, an inmate’s rights will not be restricted to more than what is necessary for safe and humane confinement in segregation. This means that segregation cells will typically have independently controlled lighting, a bed with freshly issued bedding, a functioning toilet and sink, electrical outlets, connection for television cable services, a chair, a window, and shelving (BCCLA v. the Government, 2018). The meal requirements for inmates are respected as if they were living in general population. Laundry services, cleaning supplies, library services, and an inmate phone system can be immediately accessed within the segregation unit. This is comparable to many jurisdictions in the United States (Berger et al., 2013) Once an inmate is housed under administrative segregation, there are multiple points of review concerning whether the inmate should maintain segregation status or be released into general population in order to be in compliance with section 33 of the CCRA (1992). Outlined by 9 CD 709, the first review, not including the initial consultation prior to admission or within one working day, is the 5-day working review. The Institutional Review Board (ISRB), chaired by the Institutional Head or delegate, conducts this review and a decision is made whether to continue segregation or release the inmate into general population. If the decision is to maintain segregation placement, a parole officer will consult with relevant staff and develop a Reintegration Action Plan (RAP) within 10 working days of the 5-day working review. The RAP will outline the necessary steps that need to be taken in order for the inmate to integrate back into general population as soon as possible. For example, an inmate may have incurred debt to other inmates that he is unable to pay off. Because of this, his safety is in jeopardy as it is reasonable to believe the other inmates may assault him as retribution for failing to pay. While the inmate’s physical safety is ensured with administrative segregation, a payment plan can be developed and negotiated with the inmates in order to prevent an assault. The ISRB will conduct a second review of an inmate’s segregation status after a total of 30 days housed in administrative segregation. To provide additional oversight, the National Long-Term Segregation Review Committee (NLTSRC), chaired by the Senior Deputy Commissioner, is tasked with reviewing every segregation case whereby an inmate is segregated for 60 days, segregated 4 times in a calendar year, or has spent 90 days cumulatively in segregation within a calendar year. International Standards The United Nations provide international standards for the treatment of prisoners. In particular, the United Nations Standard Minimum Rules for the Treatment of Prisoners, 10 commonly referred to as the Mandela Rules, provide a framework for all nations to adopt and apply to the detention and imprisonment of any individual. Rule 1 mandates that no prisoners shall be subjected to torture, or cruel, inhumane, or degrading treatment, and that all prisoners shall be protected from punishment. Rule 1 also states that safety and security must be ensured for all those within an institution, including inmates, staff, service providers, and visitors. This particular rule is relevant to Canada’s debate concerning the use and application of segregation as it incorporates the concern for individual rights as well as the concern for collective safety and security. When considered within an international scope among various circumstances of imprisonment and under certain conditions of confinement, there is no doubt that segregation could be considered cruel, inhuman, or degrading treatment. However, some jurisdictions may require segregation as it is the only effective method to ensure the safety and security of those within an institution. Solitary confinement is explicitly addressed in Rules 44 and 45. Under Rule 44, solitary confinement is defined “as the confinement of prisoners for 22 hours or more a day without meaningful human contact” (United Nations General Assembly, 2015, p.17). This definition will be examined to determine the extent to which it can be applied to administrative segregation in Canada. CSC (2017) takes the position that administrative segregation is not solitary confinement as defined by the United Nations. First, under the current policy (CD 709), inmates are entitled to 2 hours of yard per day, not including the time required for a shower, meetings with support staff, visits, and cell cleaning. Although inadequate staffing likely does not allow for much more than 2 hours out of cell for every segregated inmate in Canada, the current policy does not support inmates being confined for 22 hours or more in a day. Second, the UN definition does 11 not consider whether confinement is voluntary or involuntary. Voluntary segregation refers to an inmate requesting segregation, which is approved by the Institutional Head. In contrast, involuntary segregation refers to a decision made solely by the Institutional Head. Although Zinger et al. (2001) make a valid point that even a voluntary placement in segregation is inherently involuntary because segregation would likely be avoided if possible, the UN guidelines do not explicitly address how to manage an inmate that voluntarily seeks confinement within administrative segregation. When examining the second condition of the UN definition for solitary confinement, there is no explanation for what constitutes meaningful human contact. An inmate fearing for their own safety, for example, may be unable to contact their spouse, children, parents, or other family via the inmate telephone system in an open prison unit. However, solitary confinement may provide an opportunity for this contact in a safe and secure environment. If meaningful human contact must be with an individual in the same vicinity, then support staff such as spiritual practitioners, healthcare professionals, community support volunteers, parole officers, and mental health professionals likely provide meaningful human contact. While healthcare professionals are required to attend each segregation cell on a daily basis, other support staff are available to attend the segregation unit to interact with inmates upon request. An inmate housed in general population is typically required to leave their cell to interact with these individuals. If meaningful human contact must be achieved through interacting with peers, some administrative segregation units provide multiple segregated inmates an allotted time in the same yard area when no security concerns exist. 12 The use of solitary confinement to manage inmates is not completely condemned by the Mandela Rules. Rule 45 states that if an inmate is subjected to solitary confinement, it must be a last resort, for the least amount of time possible, subject to independent review, and authorized by a competent authority. Rule 45 prohibits the use of solitary confinement for individuals that are mentally ill or disabled when their conditions would be exacerbated by the conditions of confinement. Prolonged solitary confinement is prohibited under Rule 43, whereby prolonged is defined as greater than 15 consecutive days under Rule 44. Because the vague definition of solitary confinement may not be applicable to Canadian segregation, it is important to examine solitary confinement in other developed nations to draw similarities and note differences. Defining Segregation in the Literature and Abroad Solitary confinement, isolation, supermax, and segregation are terms commonly interchanged within the literature, policy, and news media. However, these definitions often do not share a universal standard concerning the physical environment or the nature and extent of social interactions that characterize the conditions of confinement. Although these terms may share similar characteristics with Canadian segregation in some circumstances, it is important to differentiate between definitions to ensure the literature is relevant to a Canadian context. The following section will discuss the similarities and differences of solitary confinement/segregation in Canada, the United States, and Europe. One defining characteristic of segregation that is often described in the literature is the significant number of hours an inmate spends in a cell. Shalev (2015) describes solitary 13 confinement as the “physical and social isolation of individuals who are confined to their cell for 22 to 24 hours a day” (p. 145). Bennion (2015) provided a definition of a supermax, which was widely agreed upon by state wardens, as an independent unit where inmates are confined within a single cell for 23 hours or more per day. Beyond the amount of time spent in a cell, the conditions of confinement vary significantly. Reiter (2014) describes solitary confinement within a supermax as consisting of an eight-by-ten foot, windowless cell whereby all interaction is done through glass and the inmates are moved with mobile cages. Inmates held in supermax confinement have severe restrictions for personal property and access to library, legal, and canteen services (Haney, 2003). Correctional officers monitor these facilities with the use of cameras and intercoms rather than direct observation (Haney, 2003). The ability to use a phone is infrequent, if permitted at all (Smith, 2006). These harsh conditions of confinement are not necessarily shared among segregation or solitary confinement units. Berger et al. (2013) described administrative segregation in certain state jurisdictions to have the same cells available as in a general population, allow for double-bunking (two inmates housed in the same cell), and allow for interaction between inmates during recreation time. Correctional officers are required to conduct security rounds where they must visit each individual cell on a consistent basis (Berger et al., 2013), as opposed to relying on video monitoring and intercom communication. In addition, inmates are entitled to mail, phone calls, educational services, and a variety of personal property such as reading materials and radios. Windows in both the cell and cell doors are common, as is inmate controlled lighting. While solitary confinement, supermax, and administrative segregation are considered the same, as defined by the Mandela 14 Rules, the descriptions of the conditions of confinement demonstrate considerable variation within the literature. In addition to the variation of physical environment, the conditions of confinement are often dependant on the intended purpose of the solitary confinement. Solitary confinement may be used for punishment, protection, and managerial purposes (Cochran et al., 2017). Shalev (2015) identifies four distinct types of confinement that meet each purpose: pre-trial confinement, punitive confinement, protective custody, and administrative segregation. Pretrial confinement is intended to prevent collusion among detainees or intimidation of witnesses that could jeopardize an investigation. This type of solitary confinement has two specific issues that question the ethics of its use. During the pre-trial phase, the isolated individual may be completely innocent and the stress of incarceration for an innocent civilian may result in mental health concerns. For example, the suicide rate in state prisons is much lower than in local jails (Kovasznay et al., 2004), supporting the speculation that jail prisoners experience greater psychological stress than convicted prisoners. In addition, increased stress is possible from the on-going trial, where Shalev (2015) suggests an individual’s ability to participate in court may be compromised as a result of the adverse effects of solitary confinement. Second, because of their present stage in the criminal justice system, it is unlikely that the confined individual would have the same personal cell effects, such as a television, radio, or reading materials that a convicted prisoner would have, thus creating an environment with less stimulation. Shalev (2015) refers to these conditions of confinement as “complete solitary confinement” (p. 151). While it can be argued that the administration of justice outweighs the concern of mental health effects for pre-trial detainees, it is important to consider the possibility of solitary 15 confinement being used to impact the trial outcome. In other words, solitary confinement creates the opportunity for psychological pressure to be used to influence a guilty plea from pre-trial detainees. In this setting, solitary confinement may be a means to prevent collusion necessary for the administration of justice or a coercive tool that negatively impacts the outcome of the trial (Instanbul Statement, 2007). Punitive solitary confinement in Europe is described as time an inmate receives for a serious prison infraction or multiple infractions (Shalev, 2015). Punitive solitary confinement is also used in the United States, but as a sanction mostly for violent offences (Morris, 2016). To reinforce the claim that punitive solitary confinement is generally reserved for inmates committing serious violence, Cochran et al. (2017) found that inmates who committed a major violent infraction were forty-five times more likely to receive solitary confinement as a punitive sanction compared to non-violent infractions and sixteen times more likely if they committed a minor violent infraction. Given the due process requirements for punitive solitary confinement, it is less likely to be overused for inmates considered a nuisance. Canada utilizes this type of confinement under the designation of disciplinary segregation. The conditions and regimes of this confinement will vary among different jurisdictions (Shalev, 2015); however, because it is generally limited to short periods of time, it is likely that there are restrictions on personal effects and visitations. Morris (2016) also describes punitive solitary confinement to be short lasting as the purpose is not to remove an unmanageable offender from the population, but to deter serious prison misconduct. Europe and the United States both utilize protective custody and administrative segregation (Shalev, 2015; Morris, 2016). Inmates can be placed in protective custody by their 16 own request or by a decision made by correctional administrators (Shalev, 2015). The purpose of protective custody is to ensure the safety of inmates from themselves or others (Morris, 2016). Inmates that are at a heightened risk of self-harm or suicide may be placed in this type of confinement in order to enhance direct observation of their behaviour and limit their access to objects that can be used to inflict injury or trauma. This type of confinement ensures that vulnerable inmates will not be in direct contact with potential assailants. Lastly, administrative segregation is defined as confinement with the purpose of housing disruptive inmates that are unmanageable in the general population (Morris, 2016). An inmate may be subjected to administrative segregation because s/he is designated a heightened escape risk or at risk of violence to others, or due to the nature of their crime (Shalev, 2015). Because the time spent in administrative segregation is longer, inmates are often able to access personal cell effects, establish visits, and have limited access to correctional programming. In Canada, there is only administrative segregation; however, the policy also includes the function of protective custody. As mentioned, the conditions specific to segregation are not universal. Although general concepts, such as confinement to a cell for 22-24 hours per day, are constant among different jurisdictions, the inconsistent regimes and conditions must be considered when attempting to utilize empirical data in designing policy. For example, findings reported from a study on pretrial solitary confinement may not be applicable to administrative segregation in Canadian federal prisons. This important distinction will be considered in examining the literature pertaining to psychological harm, exacerbating mental illness, and managing the overall goals of prison. 17 British Columbia Civil Liberties Association (BCCLA) v. the Government The BCCLA partnered with the John Howard Society to end administrative segregation as it is currently practiced in federal institutions by bringing forth a legal challenge. The plaintiffs claimed that the sections of the CCRA (1992) relevant to administrative segregation were unconstitutional under the Canadian Charter of Rights and Freedoms. In particular, the following sections were referenced: Section 7: The right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Section 9: The right not to be arbitrarily detained or imprisoned. Section 10(b): The right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. Section 12: The right not to be subjected to any cruel and unusual treatment or punishment. Section 15: Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Constitution Act (1982) In addition, the plaintiffs claimed that the use of administrative segregation disproportionately impacted Aboriginal offenders and mentally ill offenders. The witnesses called upon by the 18 plaintiffs comprised of 10 experts and 8 lay witnesses, which were primarily former employees of CSC and inmates who experienced administrative segregation. The Attorney General of Canada responded to the plaintiffs’ claims with the following defences for why the case should be dismissed. First, administrative segregation is currently practiced in such a way that provides inmates with an opportunity for sufficient meaningful contact. Second, the relationship between psychological harms and segregation has not been confidently established within the scientific literature and the debate is ongoing. Third, administrative segregation is a necessary tool for the complex task of maintaining the safety and security of the institution, as there are instances where a reasonable alternative does not exist. Lastly, the Government argued that administrative segregation is only indefinite in the sense that the length of time is determined by how long it takes to eliminate the issue that required its use. The witnesses called upon by the government were 2 experts and 10 lay witnesses that comprised current and former CSC employees. The judge declared the laws authorizing administrative segregation of inmates as invalid on the grounds that they violated Charter rights. Pursuant to section 7 of the Charter, the laws authorize prolonged, indefinite segregation, decisions regarding the admission and release of inmates in segregation without an external review, and the deprivation of an inmate’s right to counsel at hearings and reviews. Pursuant to section 15 of the Charter, the laws authorize the segregation of inmates who are mentally ill and/or disabled and the procedures result in discriminate against Aboriginal offenders. However, this declaration was suspended for 12 months, as it was recognized that an immediate implementation would create safety and security concerns for the public or threaten the rule of law. 19 Evidence presented to the court addressed a variety of issues. Current policy, conditions of confinement, trends in placements and duration, and prison dynamics were topics included in the testimonies of various witnesses. Prison dynamics focused primarily on Security Threat Groups (STGs) as defined for the court by CSC as “any formal or informal ongoing inmate/offender group, gang, organization or association consisting of three or more members” (BCCLA v. the Government, 2018, p. 31). The discussion of STGs and prison dynamics included testimony that although there are multiple alternatives available, the reasonable alternative for alleviating the need for segregation due to STGs is to facilitate a transfer to another institution. While this evidence appeared to be considered in the decision to suspend the declaration, it did not appear to be as relevant in the overall decision. The evidence that appeared to have the greatest influence in the court’s decision involved administrative segregation and mental health, and available alternatives to achieve the same managerial purpose of administrative segregation. The evidence of mental health issues related to administrative segregation held the greatest significance in the case. The expert witnesses called on by the BCCLA were Dr. Stuart Grassian and Dr. Craig Haney. Dr. Grassian is a psychiatrist with 25 years experience, on the faculty of the Harvard Medical School, and an author of numerous relevant publications in the scientific literature. Dr. Haney is a professor with a PhD in Psychology and a Juris Doctor degree, who also has published numerous academic articles on the topic. Both experts stated that administrative segregation causes significant psychological harm to all inmates and especially inmates with a serious mental illness. In addition, both of these experts testified that there is a direct causal link between self-harm or suicide and being placed in administrative segregation. The opinion of 20 these experts was that a maximum of 15 consecutive days in segregation, recommended by the Mandela Rules, is generous, considering that psychological harm is likely to occur prior to this deadline. The expert witnesses called upon by the Government were Dr. Jeremy Mills and Dr. Paul Gendreau. Dr. Mills is a licensed psychologist with 25 years experience in the federal correctional system, which includes experience in both medium-security and maximum-security institutions. He has also completed over 1,000 segregation reviews, in addition to crisis intervention and counselling/therapy in segregation units. Dr. Gendreau has been a full-time research professor in the area of corrections and forensics for 16 years with a PhD in experimental psychology and has over 200 academic publications, whereby many are directly related to administrative segregation. In addition to this, Dr. Gendreau has been a certified psychologist for 40 years and has practical experience in both federal and provincial corrections. Both Dr. Mills and Dr. Gendreau acknowledged that psychological harm may result from administrative segregation, but that inmate characteristics and interactions with correctional staff are variables that must also be considered rather than merely attributing harm to the conditions of confinement. Dr. Mills’ opinion is that there is no evidence that proves a causal relationship between mental health issues and segregation, and that limiting the duration of a placement has not been proven to impact the mental health of inmates. In fact, Dr. Mills argued that removing an inmate segregated for personal safety because of a legal deadline, rather than managing the initial safety concern, is likely to create mental health issues as a result of being removed from a safe environment. Dr. Gendreau’s opinion is that psychological harm occurs in segregation as a result of destructive relationships between 21 correctional staff and inmates, as well as a lack of treatment services available to those in administrative segregation. With respect to inmates diagnosed with a mental illness, Dr. Mills and Dr. Gendreau argued that some evidence suggests these inmates experience more harm if placed in the general population and that an individualistic, case-by-case approach is best when making decisions about segregation. The second most significant evidence that influenced the court’s decision was available alternatives to segregation. As detailed in the SAT, the alternatives that must be considered prior to a segregation placement are mediation between inmates, voluntary cell confinement, culturally appropriate/restorative alternatives (e.g., contacting elders or the Aboriginal Liaison Officer (ALO) to help resolve the issue), transferring inmates to other cells or institutions, and placement in mental health care. In regards to transferring inmates to other institutions, a retired deputy commissioner testified that the process might take up to 30 days, as it requires a considerable amount of time for communication between institutions to establish the feasibility of a transfer. This includes considerations such as the inmate’s crime, STG status, and institutional behaviour to ensure the inmate will be safely managed at the destination institution. Another alternative was to create a subpopulation with the implementation of a transitional unit or a special needs unit. The rationale for a subpopulation is to accommodate for the complex prison dynamics that cannot be managed with only two population options: general population and segregation. A former Warden of Kent Institution testified that the institution managed its inmates with four distinct subpopulations. Another former Warden of Kingston Penitentiary reported using seven subpopulations to manage its overall inmate population. These subpopulations were characterized as accommodating inmates with mental 22 illness, inmates that feared for their own safety, inmates vulnerable due to age or disability, and inmates transitioning from administrative segregation to general population. Unfortunately, the use of transitional units to create subpopulations was abandoned, due to the inability to convince inmates to move towards general population. Witness testimony indicated the inmates became too comfortable in their current placement and were resistant to leaving. Also, there was a lack of adequate resources to prevent a transitional unit from operating under the same conditions as administrative segregation, but without the procedural safeguards. Ultimately, the court rejected the expert opinions of Dr. Mills and Dr. Gendreau, and accepted the expert opinions of Dr. Grassian and Dr. Haney. The judge accepted that administrative segregation causes psychological harm that can have severe consequences, such as suicide. In addition, the necessity of administrative segregation beyond 15 days was considered invalid based on the alternatives prescribed by the SAT. It was acknowledged by the judge that short-term segregation is justified under section 7 of the Charter, as the restriction of liberty is required to maintain the right to life and security. This, however, was not extended for prolonged or indefinite administrative segregation. Psychological Harm The notion that psychological issues are associated with segregation has been argued since the development of western prison systems. In the 1830s, it was documented that cases of insanity began to appear when the Millbank Prison in England introduced policy to prevent communication between inmates and to enforce solitary confinement (Smith, 2006). In the 23 1950s, the discussion of whether segregation causes psychological distress utilized the findings of studies that focused on sensory or perceptual deprivation that occurred to prisoners of war (Smith, 2006) where personalities of returning soldiers were reported to be altered without inflicting physical pain or the administration of drugs (Hebb, 1958). Thus, it was the first observation that the physical environment can have a significant psychological impact on an individual. Currently, the research that has focused on whether individuals experience negative physical or psychological distress while isolated has determined that environmental circumstances, duration of isolation, and personal characteristics significantly influence the outcome (Smith, 2006). For example, Wooldredge (1999) found less educated inmates experience greater psychological distress and require greater social capital and coping skills to deal with adverse circumstances. Similarly, Kaba et al. (2014) suggested that solitary confinement increases the risk of suicide and self-harm. Finally, Ahalt et al. (2017) reported that in 2012, the American Psychiatric Association called for a significant restriction of solitary confinement based on the association between mental illness and isolation. These concerns included exacerbated symptoms of a pre-existing mental illness as well as the development of new disorders (American Psychiatric Association, 2012 as cited by Ahalt et al., 2017). To further understand the link between segregation and psychological harm, it is important to consider the possibility that incarceration, in general, may be responsible for a heightened risk of psychological harm rather than segregation specifically. Longitudinal studies have found that upon admittance to prison, the instance of psychiatric symptoms associated with depression, anxiety, and obsessive-compulsive disorder increase temporarily and as the individual adjusts to the change in environment, his/her mental state improves over time (Walker et al., 2014). 24 Similarly, Taylor et al. (2010) found in a sample within a pre-trial institution that mental health symptoms such as anxiety and depression reduced over time. The first measurement of symptoms occurred within a week of the inmate’s admission to the institution and the second measurement occurred 3 weeks later. Taylor et al. (2010) also speculate that mental disorders are more prevalent among pre-trial detainees compared to sentenced prisoners. Although not specifically examining segregation, these findings may support the idea that pre-trial detainees are more vulnerable to conditions of confinement than convicted prisoners. Hassan et al. (2011) looked at mental health symptoms for pre-trial and convicted prisoners. The initial data was collected within 3 days of reception, and subsequent data was collected at 3-5 weeks and again at 7-9 weeks. In support of Taylor et al. (2010), Hassan et al. (2011) found that the reduction of some psychiatric symptoms (mainly depressive symptoms) over time was greater for convicted prisoners when compared to pre-trial prisoners. In addition, it was found that inmates with a depressive disorder and with no mental illness had a linear decline of depressive symptoms. Inmates identified with a psychotic disorder demonstrated change in psychiatric symptoms, however, it was not a linear decline, as this change included an increase followed by a decrease. In contrast, Blaauw et al. (2007) found that symptoms were not exacerbated among a sample of 61 inmates in the Netherlands with a pre-existing disorder characterized with psychosis. It was theorized that the reduction of psychiatric symptoms in the general prison population may have been a result of accessibility to medication, stable diet, and reduced availability of alcohol. While the literature suggests that psychological distress may occur at the beginning of incarceration under conditions of confinement, this distress is alleviated over time. This is an 25 important consideration when reviewing the literature specifically examining the condition of confinements of segregation for two reasons. First, when inmates are sampled from the general prison population to be compared with inmates housed in segregation, those inmates who have recently been admitted to the prison may impact the baseline assessment of mental health. A cross-sectional study examining psychological harm and segregation that uses a comparison group of inmates from general population may produce results based on the length of time for overall incarceration rather than the conditions of confinement. The findings from the discussed literature (e.g., Hassan et al., 2011; Taylor et al., 2010; Walker et al., 2014) suggest psychological distress is impacted by the adjustment period required after a change in environment. Second, it appears that incarceration has a greater negative impact on pre-trial detainees when compared to convicted prisoners (Hassan et al., 2011; Taylor et al., 2010). This is important to consider when studies that examine the link between mental health and solitary confinement in a pre-trial context are applied to the debate for its use with convicted prisoners. The focus of this paper will be on the relationship between psychological harm and the conditions of confinement specific to segregation rather than general incarceration. Development of New Disorders The hypothesis that psychological damage results from placement in a segregation unit developed from research indicating a link between sensory deprivation and social isolation. The link between sensory deprivation and social isolation has been examined through two different settings: laboratories and prisons. The scientific literature produced in a laboratory is considered corroborating evidence as it was not extracted from a real prison environment (Haney, 2003). Experiments conducted in a laboratory setting were able to create conditions of 26 confinement that deprived participants of visual, auditory, and tactual perceptions. These particular conditions of confinement resulted in a lack of energy, reduced problem solving, visual hallucinations, and impairment in intelligence among study participants (Hebb, 1958). This evidence is often criticized because the lab conditions are not reflective of a prison environment. Suefeld (1975) argued that sensory deprivation under laboratory experiments was only superficially similar to the experience of isolated prisoners. More specifically, an environment with low-level stimulus is unlikely to result in emotional disturbances when considering other factors that may impact an inmate in a prison environment, such as stress of potential physical violence and the inability to cope with stress. Another indirect method for evaluating whether isolation has a negative psychological impact was the use of animal experiments. Hebb (1958) believed that using animals was an adequate measure because it allows for the measurement of the long-term impact of isolation on mammals with a shorter lifetime. For example, the use of dogs allows researchers to examine the long-term effects of isolation that takes into consideration a greater scope of factors related to development and aging when compared to humans. Fone and Porkess (2008) found evidence of psychopathology among rats that experienced social isolation. The variation in neurochemistry and observed behaviour indicated symptoms strongly associated with schizophrenia. Eerily, the rats in this study were isolated in a manner that mirrored the isolation practice of administrative segregation, as the rats were able to see, hear, and smell the other rats despite being physically restricted from social interaction. However, these isolation conditions may not be comparable to a prison environment. Segregated inmates do not experience complete social isolation since they do interact with correctional staff, medical staff, visitors, and inmate workers. 27 In addition to laboratory experiments examining the relationship between isolation and the development of mental illness, studies within institutional settings have been conducted in an attempt to increase the relevance of the findings. One early prison study on the effects of solitary confinement interviewed a sample of 14 inmates held in solitary confinement within a U.S prison (Grassian, 1983). Over a 3-week period, the inmates reported the manifestation of psychiatric symptoms, which were directly attributed to solitary confinement (Grassian, 1983). The conditions of confinement were windowless cells that had all personal belongings removed with the exception of a bible. The entire inmate sample reported at least one distressing symptom, such as perceptual distortions, significant anxiety or panic related symptoms, disturbing thoughts, impulse control, and cognitive difficulties. For perceptual distortions, 11 inmates reported hypersensitivity to stimulus such as food, insects, and noise. In addition, 7 inmates reported hallucinations, where 3 reported visual and 4 reported auditory. With the exception of one inmate reporting previous perceptual distortions (occurring with the use of psychedelic drugs), all others reported they had never experienced perceptual distortions prior to solitary confinement. When examining affective disturbances, 10 inmates reported significant anxiety, characterized with symptoms of shortness of breath, feelings of panic, dizziness, and increased heart rate. Of these 10 inmates, 3 had reported past symptoms, while the remaining 7 reported they had never experienced anxiety symptoms prior to solitary confinement. Finally, 8 inmates reported cognitive deficiencies (loss of memory, inability to concentrate), 6 reported disturbing thoughts, and 5 reported problems with impulse control. There was no discussion of past experience of these three symptoms, however, all interviewed inmates reported the symptoms to dissipate rapidly once removed from solitary confinement. 28 While it may support the hypothesis that solitary confinement causes psychological harm, this study has several limitations regarding the sample and data collection. All 14 inmates were plaintiffs of a civil suit against the Department of Corrections for alleged cruel and unusual punishment occurring in the form of solitary confinement and the observations recorded by Grassian (1983) were a result of a court order to mandate a psychiatric evaluation of these inmates to determine the credibility of the allegations. Furthermore, Grassian (1983) reported that the interviewer, a psychiatrist, was required to actively encourage the inmates todisclose information pertaining to psychological distress. Grassian (1983) attributed the reluctance to report psychological distress to defensive strategies such as denial, rationalization, avoidance, and distortion. Although this could be a reasonable explanation, considering the era and the greater stigma towards psychological distress among males in general, let alone inmates, it is also possible that the inmates were coached or primed to provide answers the interviewers were searching for. While Grassian (1983) claims the inmates’ reluctance to report psychological distress is evidence that there was no bias in the inmates’ responses as a result of the civil suit, the sampling and interviewing tactics used by Grassian (1983) are criticized as significant limitations and a potential conflict of interest (Glancy & Murray, 2006; O’Keefe, 2008). However, “despite these limitations, this study [by Grassian, 1983] has been widely quoted” (Glancy & Murray, 2006, p. 363) in support of the position that solitary confinement causes psychological disorders. Hagan et al. (2017) conducted a study in a prison setting, where the relationship between post-traumatic stress disorder (PTSD) and time spent in segregation while incarcerated was examined. Using post-incarceration medical data on 119 offenders that had 29 recently been released to the community, 33 offenders (28%) screened positive for PTSD. Of these offenders, 43% were placed in segregation during incarceration while 16% remained in open population. While these numbers suggest inmates are at greater risk for PTSD when placed in segregation, certain methodological issues must be considered. This study utilized data from both prison and jail inmates, and did not distinguish them in the results. As discussed previously, the circumstances and conditions in a jail segregation may differ from those in a prison segregation. Not only will the access to an inmate’s personal effects differ, but a jail segregation may subject inmates to other stressors that are unique to a jail setting (Istanbul Statement, 2013; Shalev, 2015). Jail inmates are often awaiting trial and have less time to cope or adapt to their environment, creating difficulty in discerning whether segregation is the cause of PTSD or if it is other circumstances commonly experienced by jail inmates (Astor, Fagan, & Shapiro, 2018). In addition, although Hagan et al. (2017) controlled for a prior PTSD diagnosis, the study was unable to attribute PTSD to segregation, from another instance related to the index offence, or unreported victimization while incarcerated (e.g., assaults, rapes). For this reason, it is unknown to what extent segregation is responsible for a PTSD diagnosis. Zinger et al. (2001) provided a study of administrative segregation in CSC. The participants in this study were from three different institutions and included inmates housed in both administrative segregation units as well as general population units. Both groups were evaluated three times over the course of 60 days (baseline, 30 days, 60 days). The inmates were assessed with structured interviews conducted by the researchers and supervised by senior psychologists. Overall, inmates housed in segregation reported greater psychological distress when compared to inmates housed in the general population. However, both groups reported 30 less psychological distress overtime and there were no significant difference between the baseline assessment and the final assessment for inmates housed in segregation. There was also no significant difference in reported psychiatric symptoms among segregated inmates that were transferred out after the 30-day assessment compared to those that spent the entire 60 days in segregation. While inmates housed in segregation reported greater psychological harm when compared to the general population, Zinger et al. (2001) were unable to determine if this was a result of their placement or if the segregated inmates had poorer mental health prior to their placement. However, Zinger et al. (2001) stated that the results of the study should not legitimize the practice of administrative segregation as it presents logistical issues such as access to rehabilitative programs. Determining if segregation causes mental disorders presents difficult methodological issues for researchers. The challenge lies with the inability to distinguish whether segregation creates new psychological issues or if inmates that have a mental illness or a predisposed risk for mental illness are more likely to be housed in segregation (O’Keefe et al., 2013). In an attempt to answer this question, O’Keefe et al. (2013) examined both mentally ill inmates and non-mentally inmates in administrative segregation and the general population at the Colorado Department of Corrections, in addition to mentally ill inmates housed at a treatment center. All inmates were assessed for a variety of psychiatric symptoms, whereby inmates in administrative segregation were evaluated 6 times at 3-month intervals and inmates in the general population and treatment center were evaluated 5 times at 3-month intervals. The results of the study concluded that mentally ill inmates in administrative segregation, mentally ill inmates in treatment, and mentally ill inmates in general population exhibited similar levels 31 of psychiatric symptoms in the initial assessment. There were no statistically significant differences between the 3 groups of mentally ill inmates throughout the remainder of the study. Non-mentally ill inmates in administrative segregation reported more psychiatric symptoms when compared to non-mentally ill inmates in general population in the initial assessment and throughout the study; however, the reported symptoms of the segregated inmates declined to the extent that the final assessment was close to the baseline levels of the general population inmates. The authors of this Colorado study acknowledge that certain limitations should provide some caution in generalizing the findings. First, as discussed, the varying conditions of confinement must be considered to determine the relevance of the findings. The conditions of confinement were described in Colorado as single occupancy cells, which are equipped for the use of televisions and have an intercom system to communicate with the control post. Services provided at the cell include meals, medications, library, and educational or treatment programs. Inmates were provided one hour recreation time for 5 periods a week and 15 minute showers 3 times a week. While not identical, the description of administrative segregation used in this study seems to be similar to the conditions found in Canadian prisons. Another limitation acknowledged by the authors was the inability to sample inmates that had no prior history of administrative segregation. It is common for inmates in segregation to have experienced isolation multiple times during their overall incarceration and therefore, it is difficult to assess true baseline levels that have not already been influenced by a prior segregation placement. Lastly, the study only included literate inmates. Because more educated inmates have a greater resilience to psychological harm (Wooldredge, 1999), the inclusion of illiterate inmates may have influenced the results. 32 Exacerbating Symptoms of Pre-Existing Mental Illness Aside from the risk of developing a new mental disorder, researchers have attempted to evaluate the extent to which a restrictive segregation environment exacerbates symptoms in already mentally ill inmates. This is important, as many individuals placed in administrative segregation are mentally ill. In the U.S, over 1.25 million inmates are suffering from mental health issues, which is 60% of the entire prison population (Hafemeister & George, 2012). In Canada, Brink, Doherty, and Boer (2001) randomly sampled 207 federal inmates upon admission to the Regional Reception and Assessment Center and found 84.2% had at least one mental disorder (defined as disorders on Axis I of Diagnostic and Statistical Manual of Mental Disorders-IV). Not only are mentally ill individuals more likely to be arrested and processed through the justice system and ultimately incarcerated, but these individuals may develop a mental illness while incarcerated (Hafemeister & George, 2012). With a significant number of mentally ill inmates contributing to the total population housed in penitentiaries, it is expected many would be placed in administrative segregation. Fellner (2006) argues this derives from the observation of disruptive behaviours that occur as a result of mental illness, that are the same disruptive behaviours that would meet the requirements for a placement in solitary confinement. While inmates housed in administrative segregation report a variety of mental health symptoms (Bottos, 2008), it is possible that this is attributed to the increased segregation placements of mentally ill individuals to manage disruptive behaviour (O’Keefe et al., 2013) rather than causing the development of symptoms. One theory of why restrictive housing environments is a significant concern for inmates with mental illness is based on social reality testing, the same theory that argues why isolation 33 causes mental illness in otherwise healthy individuals (Knowles, 2015). Social reality testing is a process that individuals engage in during social interaction to assess their perceptions of reality. An individual is considered psychologically healthy ifs/he maintains close contact with reality (Taylor & Brown, 1988). In order to maintain an accurate reality, an individual can use other individual’s verbal and non-verbal cues to reinforce attitudes and beliefs (Taylor & Brown, 1988). Inmates deprived of this interaction while housed in segregation will only have their own perceptions to discern reality from illusion. In the case of an inmate with a mental illness, there is concern of developing inaccurate perceptions of reality that will remain unchecked without social interaction. Another reason why restrictive housing environments are problematic for mentally ill inmates is that inmates in isolation have restricted access to treatment options for their mental health. Psychotropic medications are argued to be less effective in confinement and the lack of privacy as well as the restrictive environment likely limits the effectiveness of consultation with mental health professionals (Knowles, 2015). Despite the claims that the environment of segregation creates significant psychiatric symptoms for mentally ill inmates, the research examining this is inconsistent. Although many argue a robust body of literature supports the notion that segregation is damaging for the mentally ill, some research indicates potentially beneficial effects. Some studies examining the effects of sensory deprivation specifically related to psychiatric patients have found significant improvement in symptoms. For example, Grassian and Friedman (1986) found that inpatients with more overt symptoms demonstrated the greatest reduction of symptoms after confinement. In a small study utilizing twelve schizophrenic patients, Harris (1959) found that the intensity of hallucinations was reduced when exposed to sensory deprivation for short periods of time. Other studies on 34 schizophrenic participants have found that some prefer sensory deprivation while others prefer sensory stimulation (Grassian & Friedman, 1986). While the laboratory experiments on mentally ill individuals may not produce similar trends for segregated inmates with mental illness, the findings suggest that isolation is not inherently harmful in allowing mentally ill individuals to maintain an accurate perception of reality. Considering the majority of inmates will be released back into the community, it is necessary to ensure that the use of segregation does not impede inmates with mental illness from effective treatment (Kupers, 2008). The restrictive environment of segregation could potentially dissolve any self-monitoring behaviours, such as medication compliance, that are necessary to successfully re-integrate into the community. While the conditions of confinement of segregation may be the root cause behind decreased medication compliance, inmates that are housed in the general population may divert prescribed medication in order to sell to other inmates they have the opportunity to interact with (Dvoski & Spiers, 2004). Nonetheless, even if the environment of segregation does not directly exacerbate symptoms of mental illness, the environment may indirectly exacerbate a mental illness if the proper safeguards are not employed. Self-Harm and Suicide Self-Harm and suicide attempts are a major issue for all custodial environments (Lohner & Konrad, 2006). Statistics have indicated suicide as the leading cause of death for incarcerated individuals in general, with many occurring in restrictive housing (Kaba et al., 2014). A study on the New York Jail System by Kaba et al. (2014) is one commonly cited examination of suicide and self-harm and solitary confinement. The New York Jail System houses offenders that are 35 awaiting trial or serving short sentences that are more appropriately measured in days and months rather than years. Self-injurious behaviour (SIB) was categorized as self-harm and potentially fatal self-harm. Self-harm was defined “as an act performed by individuals on themselves with the potential to result in physical injury” (Kaba et al., 2014, p. 442).To qualify as potentially fatal, an act had to be associated with a high probability of death, which was determined by the assessment of two physicians and a physician assistant. While the link between self-harm and solitary confinement was significant for all offenders, the strongest correlation was found among offenders characterized as older than 18 years and without a serious mental illness. This trend was also the same for self-harm behaviour that qualified as potentially fatal. While this sample of inmates consisted of some convicted prisoners, prisoners awaiting trial were also included; thus, this setting is likely a closer comparison to provincial corrections rather than federal corrections in Canada. This is significant, as Jenkins et al. (2005) found sentenced prisoners to be less likely to engage in suicidal behaviour compared to prisoners awaiting trial, but were still more likely when compared to the public. Also, solitary confinement was described to be used to punish offenders who violated jail rules with the purpose of maintaining prison safety and order. While this function seems similar for inmates placed in segregation to mitigate their risk to jeopardize the safety and security of the institution, this purpose may produce different conditions of confinement and staff interaction than an inmate placed in administrative segregation for their own protection. It is important to examine the literature that excludes inmates awaiting trial and only considers sentenced prisoners. A study by Bonner (2006) examined the risk of suicide occurring in segregation within a medium security prison. Sampling 134 inmates from both segregation 36 (21%) and the general prison population (79%), Bonner (2006) measured suicidal ideation, hopelessness, depression, reasons to live, historical mental health issues, and suicide attempt lethality. The results found a higher instance of suicide ideation and depression among inmates housed in segregation compared to inmates housed in the general population. Other measures, such as hopelessness, reasons to live, and suicide attempt lethality were not significantly different between the two groups. Although self-harm and suicide, which can be broadly defined as self-injurious behaviour (SIB), are serious incidents, it is important to assess the complexities of SIB within a prison context to improve the success of managing it. While all incidents of SIB are serious to the extent that it requires staff intervention and medical assessment, not all SIB are equally associated with an expression of a mental crisis. There is indication that inmates are able to use SIB instrumentally, such as for staff manipulation or seeking high-abuse psychotropic medications. It is not a favourable position to argue, as it is seemingly impossible to ascertain the difference between an instrumental SIB and an expressive SIB, and granting a self-injurious inmate the benefit of the doubt is the compassionate and encouraged response. It is difficult and controversial to distinguish serious SIB, characterized by lethality and intent, and nonserious SIB. Manipulative suicidal behaviour must be examined as a distinct phenomenon (Lohner & Konrad, 2006). To examine the differences among SIB within an institutional setting, Lohner and Konrad (2006) examined SIB among 16 remand inmates and 17 sentenced inmates in Berlin, Germany. Nine of the sentenced inmates were housed in the same facility as the 16 remand inmates. In addition to this sample, 16 young offenders were examined (12 remand, 4 sentenced). Lohner and Konrad (2006) collected data from interviews and corroborated this 37 with a file analysis of the inmates’ institutional behaviour and health records. SIB was separated into two categories, serious and non-serious based on the extent of lethality and suicidal intent. The Suicidal Intent Scale (SIS) was used to measure intent, where a score greater than 10 was categorized as serious. The Lethality of Suicide Attempts Rating Scale (LSARS) was used for lethality, which was considered serious when a score of 5 or greater was achieved. Overall, the majority of SIB occurred during the day. Cases characterized by serious lethality were observed to be more frequent at night. When analyzing the quality of SIB and the method of SIB, significant trends emerged. Inmates that chose the method of cutting scored low on the LSARS and SIS, regardless of whether cutting required stitches or not. Contrary to this trend, hanging was statistically significant among inmates that scored high on the SIS and the LSARS. There was no statistical significance for the difference between serious and non-serious SIB when assessing intent among the collective sample, including both juvenile and adult inmates. However, when assessing lethality, age and seriousness yielded a strong, positive, significant correlation. There was no statistical significance found when other demographic variables were compared. These variables included institution of the prisoners, custodial status, previous imprisonment, and duration of imprisonment leading up to the SIB (Lohner & Konrad, 2006). While this study was limited by a small sample and did not specify differences among conditions of confinement, it demonstrates that the dimensions revolving around SIB are layered and that careful examination is required in order to effectively manage it. SIB for instrumental purposes, such as manipulation, is not any less serious than SIB with the intention to die. For example, cutting that requires stitches is a potentially fatal method of self-harm (Kaba et al., 2014), yet the intent may not be suicide, as demonstrated by Lohner and Konrad 38 (2006). In addition, if it is possible that SIB can be used for instrumental or manipulative purposes, then perhaps a similar possibility exists for other disruptive institutional behaviour. One crucial aspect of Lohner and Konrad’s (2006) findings in relation to administrative segregation is the link between depression/hopelessness and suicidal intent/lethality. High scores for intent/lethality were observed for offenders with depression and even greater significance with hopelessness. This is relevant to Zinger et al. (2001), where inmates placed in administrative segregation scored higher on a hopelessness scale for all three data collections occurring over the 60 day study. In addition to this concern, Zinger et al. (2001) found a greater instance of suicidal ideation among segregated inmates in comparison to non-segregated inmates. Because there may be a link between hopelessness and SIB that is considered serious based on both intent and lethality, and a link between administrative segregation and suicide ideation, SIB should be a serious concern when evaluating the ethics of administrative segregation. One perspective to limit the possibility that an inmate’s reported or observed suicidal behaviour is instrumental or manipulative is to examine the factors associated with completed suicides. Way et al. (2005) examined completed suicides between 1993 and 2001 within the New York Department of Corrections, which operate 71 different prisons. In the examined years, 76 suicides occurred where the inmate had previous contact with mental health services, which made up 84% of all suicides during the same period. Of the 76 suicides included in this study, 52% occurred in the general population, while 23% occurred in isolated disciplinary housing (described as similar to disciplinary segregation). The study found 7% of suicides occurred in administrative segregation housing that was used specifically for protective 39 custody. Way et al. (2005) analyzed stressors of prison in relation to suicides and found the most significant stressors prior to a suicide were recent disciplinary actions, conflicts with other inmates, expressions of fear for personal safety, physical illnesses, and receiving negative personal information. Following this study, Way et al. (2007) focused specifically on completed suicides occurring in disciplinary housing under the same setting during a slightly longer period of time (1991-2003). The 32 completed suicides were most likely to occur in the first two months of the disciplinary housing placement. It is important to note that while there were 11,756 inmates residing in disciplinary housing during 2003, there were only 32 suicides in over a decade, indicating that most inmates do not commit suicide within the restrictive conditions of confinement. Segregation and Prison Order There are two broad justifications for the use of segregation: disciplinary and administrative. There is some evidence to suggest that disciplinary segregation is not an effective method for maintaining prison order. In a study conducted by Huebner (2003), two methods of maintaining prison order were assessed in order to examine the impact each had on prison violence towards both staff and inmates. The first method of control was coercive, which included the loss of general privileges, loss of work assignment, and solitary confinement for punitive purposes. The second method of control was remunerative, which was described as positive incentives provided by the institution’s routine and structure. This type of control included paid work assignments inside or outside the prison. There was no significant relationship found between remunerative or coercive controls and violence targeting other 40 inmates (Huebner, 2003). As for violence targeting staff, inmates involved in work assignment were less likely to be assaultive when compared to other methods of controls. Morris (2015) also found that punitive solitary confinement, as a sanction for prison violence, did not have a significant impact on the prevention of assaults committed by inmates against both staff and other inmates. While the impact disciplinary segregation has on maintaining prison order is questionable, it is important to examine the extent to which administrative segregation contributes to prison order by mitigating violence. Briggs et al. (2003) found there was no overall reduction in prison violence, whether involving staff or inmates, among various states with supermax facilities when compared to states without a supermax. Although this may suggest that large-scale restrictive environments do not enhance safety, the jurisdictions used in this comparison, without a supermax facility, utilized traditional administrative and punitive segregation. To determine the extent to which administrative segregation impacts prison violence, an appropriate comparison facility without segregation would be required. To illustrate how administrative segregation contributes to institutional safety, Briggs et al. (2003) summarized a correctional officer’s explanation in the context of the special handling unit (SHU) of Pelican Bay State Prison located in California. The correctional officer explained that a white supremacist gang member was ordered to carry out a hit on a rival inmate while serving his tenyear sentence. If the member kills the rival inmate, he will likely be caught and serve a life sentence. If he does not kill the inmate, his own gang will likely kill him, thus placing the inmate in a dilemma of “kill or be killed.” A solution to this dilemma is for the gang member to assault a correctional officer in order to be placed in the SHU. This allows the gang member to avoid the 41 dilemma, as another gang member will carry out the hit, and his own gang will not target him because the gang perceives assaulting a correctional officer as an acceptable reason for him to be placed in administrative segregation. This is often referred to as a “solid check-in.” While it is difficult to compare prison violence among different institutions due to the widespread use of some form of restrictive housing, some jurisdictions have significantly restricted the use and duration of administrative segregation. Considering the scenario described by the Pelican Bay Correctional Officer, it is important to examine how such a reduction would impact the frequency or seriousness of prison violence that victimizes both inmates and correctional staff members. In the example provided by the Pelican Bay Correctional Officer, the victimization of the correctional officer is related to the underlying issue of the victimization of the inmate. If segregation is abolished because the risk of psychological harm is deemed too high, it is important to examine why segregation is used if reasonable alternatives are expected to be employed. As discussed, the two broad reasons for its use in Canada are disciplinary and administrative. Disciplinary segregation is seldom used; it accounted for only 2.2% of 8,700 total segregation placements in 2011-2012 (Zinger, 2013). This is for good reason; not only has it been demonstrated through empirical research to be ineffective in curbing undesirable inmate behaviour (Huebner, 2003), including violent attacks on staff or inmates, it does not make sense to utilize the same management tool to protects some inmates and punish others. Administrative segregation, however, may serve a more practical function. The CCRA mandated (prior to the 2017 policy changes) that administrative segregation can only be used after considering alternative solutions and where there are reasonable grounds to believe one of three conditions are met. The three conditions included the inmate will jeopardize or has 42 jeopardized the safety of an institution, the inmate will commit a serious crime, or the inmate’s safety is in jeopardy. An audit conducted by CSC in 2013 found that all 166 segregation reviews included in the audit met the pre-policy change requirements prescribed by the CCRA. Unfortunately, only 64% of these segregation reviews contained documented evidence that the three alternatives were considered: cell confinement, mediation, and cell/range transfer. It is unknown whether alternatives were considered and not appropriately documented or only one of two alternatives were considered instead of all three. It is also possible that segregation was used without considering alternatives for the remaining 36% of sampled segregation reviews. However, based on the changes in CSC policy occurring in 2017, the procedural safeguards added, such as the SAT, set a higher standard of the required official documentation for the considerations revolving around an administrative segregation placement. O’Keefe (2008) acknowledges that overusing segregation as a management strategy is a legitimate concern. To examine this, O’Keefe (2008) conducted an analysis of the reasons for an administrative segregation placement between January 2004 and December 2005 within the Colorado Department of Corrections (CDOC). The CDOC has procedural safeguards for placements in administrative segregation; inmates are informed when a review will be conducted, provided information regarding their placement as documented in their files, and have the option to be present for their hearing. This is similar to the Canadian process, where reviews are conducted on the 5th day, 30th day, and 60th day of a segregation placement. Of the 1,432 segregation placements reviewed, O’Keefe (2008) found 217 (15%) were for nuisance behaviour, such as multiple disciplinary infractions, possession of drugs or drug paraphernalia, security threat group recruitment or non-violent related activities, and refusing housing 43 assignment. The most common reason for administrative segregation was for assaults on inmates, which comprised of 703 placements (49%), in which half of these were related to security threat groups. The remaining reasons for administrative segregation were to manage inmates with attempted escapes (3%), riotous activity (15%), assaults or threats against staff (21%), and weapon possession (12%). There was also a small portion of inmates that were placed directly into administrative segregation upon their admittance to the prison (1%) due to the high profile nature of their crime, making them a potential target for inmate violence. Prison officials often fear the limitation in the use and duration of segregation placements, specifically for administrative purposes, as it is suspected to increase violent and other serious infractions (Browne et al., 2011). This fear, however, may not be justified based on evaluations specifically examining the reduction of administrative segregation within prison systems. Kupers et al. (2009) examined the Mississippi prison system once they released a significant proportion of inmates from administrative segregation into the general prison population. The release of these inmates was the result of a litigation brought forward to improve prisoner rights at a supermax facility that was used mostly for administrative segregation. As a result of the litigation, the Mississippi Department of Corrections changed the method for designating a security classification from a subjective method based on the opinion of prison officials to an objective method that was based on documented prisoner behaviour. The new classification required administrative segregation to be used for serious infractions, active high-level gang members, and prior escape attempts. The only subjective basis to justify a segregation placement was the instance where an inmate posed a risk to himself or others in the general prison population that could not be mitigated with alternative measures. Due to the policy 44 changes, the number of inmates with an administrative segregation status dropped from 1000 to less than 150 over a period of six months. With many of these inmates now in general population, monthly statistics demonstrated reported prison violence targeting both staff and other inmates reduced by 70% (Kupers et al., 2009). There are two important factors to consider when evaluating what occurred in the Mississippi Department of Corrections. The original litigation was not focused on the reduction of administrative segregation; it focused on the conditions of confinement. Kupers et al. (2009) described the conditions of confinement, prior to the litigation, as having inadequate medical, dental, and mental health services. In addition, the cell lights were reported as too dim to read or write, the toilets would flush waste into the adjacent cells, and the cells were infested with insects. In 2002, the death-row inmates initiated their own litigation over these conditions of confinement and in 2005, the remaining inmates held in Unit 32 subsequently brought forward another litigation. It was not until the 2005 litigation that the new classification system was implemented in addition to improving the conditions of confinement. An improved program and recreation area was also constructed. Thus, the reduction in security incidents may be attributed to the improved conditions of confinement rather than solely a result of the reclassification of inmates that require administrative segregation. Also, while the Mississippi Department of Corrections did release a significant proportion directly into general population from administrative segregation, a step-down unit was also implemented for the gradual reintegration for certain inmates, which were mostly inmates diagnosed with a serious mental illness. The step-down unit allowed inmates to progress from cell-confinement, to tier or range confinement, to open living units among the general prison population. It is unknown how 45 statistics on security incidents may have differed had these inmates been released directly into the general population without the step-down unit. In Canada, the reductions in administrative segregation placements have not demonstrated the same success as seen by the Mississippi Department of Corrections. The Office of Correctional Investigator (OCI) conducted a recent analysis of the managerial purpose for administrative segregation for CSC. White (2017) of the Globe and Mail published an article based on an interview with the head of the OIC, Dr. Ivan Zinger. Statistics reported by the OIC indicated that as the number of inmates housed under administrative segregation decreased, the number of reported incidents of inmate violence targeting other inmates increased (White, 2017). The OIC statistics reported in the Globe and Mail show that the greatest increase in physical assaults on inmates occurred in 2016-2017. Dr. Zinger stated that the OCI did not find this same increase with physical assaults targeting staff. Dr. Zinger commended CSC for the reduction of segregation placements and recommended that CSC needs to be more prepared for the release of inmates into the general prison population in order to mitigate the risk of being victimized (White, 2017). Interestingly, the 2016-2017 Annual Report published by the OCI in October 2017 claimed that “audit results confirm that the reduced use of segregation has not had any perceptible impact on the safety and security of staff or inmates” (p. 40). The OCI did not report the trend of increased assaults targeting inmates within the 2016-2017 Annual Report, even though it was reported by Dr. Zinger during the interview with the Globe and Mail article by White (2017), which preceded the publication by one month. For this reason, it is difficult to understand the true impact of segregation policy changes on current prison violence. It is possible that the 2017-2018 annual report will address the discrepancy, as the increase in 46 assaults may have occurred after the cut-off for the statistics included in the annual report. As for the step-down unit implemented in Mississippi, the OCI (2017) criticises the use of specialized units, referred to as segregation-lite, that confine inmates to standards that do meet the requirement for solitary confinement as the OCI suspects that these units will produce the same issues. It is important to consider that the units described as segregation-lite could be similar to Mississippi’s step-down units and that the impact of segregation-lite has not been studied to the same extent as other forms of confinement. The potential harm of segregation-lite reported by the OIC is inferred based on the similarities shared with administrative segregation. In other words, segregation-lite could still potentially be more harmful as it does not have the same procedural safeguards and internal review that traditional segregation has (Zinger, 2013). Inmate Victimization While prison violence can jeopardize prison order overall, it is also important to consider the impact of administrative segregation on inmate victimization. While the aggressor of physical violence can be segregated to mitigate the instance of future violence, victimized inmates can be segregated to mitigate future victimization from other inmates. Also, an inmate anticipating physical violence can be segregated directly by approaching correctional staff and voicing his/her concerns or indirectly by being found possessing a weapon, regardless of the purpose for personal protection. In order to examine victimization trends within prison, Wolff et al. (2007) randomly sampled inmates from 13 male state prisons and 1 female state prison that included inmates housed in both the general population (7,846 inmates) and 47 administrative segregation (83 inmates). Wolff et al. (2007) administered a survey that collected data related to prison victimization that occurred within the last 6 months of incarceration, where 21% of male inmates had reported some form of physical victimization from another inmate. The measure of physical violence included being kicked, spit on, hit, slapped, choked, hit with a weapon, and threatened with a weapon. The proportion of inmates that were housed in administrative segregation that were victimized was not separated from the aggregate rates of victimization that included inmates housed in general population. Victimization of male inmates by other inmates involving a weapon was more common (149 per 1000) when compared to violence without a weapon (117 per 1000). Wolff et al. (2007) also reported that 50% of male inmates carried a weapon, specifically for their own protection, while incarcerated. Using the same sample from Wolff et al. (2007), Blitz et al. (2008) examined whether inmates with a mental illness were more vulnerable to victimization. The study found that victimization with a weapon, inmate on inmate violence, and staff on inmate violence were more likely experienced by inmates with mental disorders when compared to their nonmentally ill counter-parts over a 6-month period (Blitz et al., 2008). Inmates with schizophrenia or bipolar disorder reported the highest levels of physical victimization from other inmates and this group was 1.5 times more likely to experience victimization involving a weapon. Lastly, inmates with any mental disorder were 1.2 times more likely to be victimized by staff members. Another inmate group that is more vulnerable to victimization is the aging inmate population. Young inmates may capitalize on the age-related disabilities of older inmates, making them more susceptible to victimization, especially in the form of property crime (Kerbs & Jolley, 2007). In a study focused on victimization vulnerability for inmates older than 50, it 48 was found that 40% of the randomly sampled 50+ aged inmates had experienced verbal victimization. Of the random sample of inmates aged 65 years and older, 25% reported threats of physical violence, 17% received verbal threats of physical violence, and 19% were indirectly threatened by being called a “snitch” by other inmates. Because a snitch refers to an inmate that is willing to provide information on other inmate behaviour and misconduct to correctional staff, this label is likely to result in being targeting for physical victimization. Just under 30% of the older inmates reported having personal belongings stolen from their cells and 10% reported being physically assaulted by another inmate without a weapon. The additional vulnerability of victimization for inmates with mental illness and older inmates is a concern relevant to administrative segregation, as mentally ill inmates and inmates with physical disabilities are prohibited from an administrative segregation placement. Therefore, other alternatives must accommodate their increased risks of victimization from other inmates. The reported findings on the trends in physical victimization of inmates should raise concern regarding a relationship between victimization and inmate psychological well-being. First, the prevalence of physical violence creates an environment where half the male inmates sampled by Wolff et al. (2007) felt the need to carry a weapon for personal protection. Second, Blitz et al. (2008) identified mentally ill inmates as more vulnerable to violent victimization, a population that is argued to be more vulnerable to psychological distress. For this reason, it is important to examine psychological harm that occurs as a result of physical victimization. When considering the risks of psychological harm from administrative segregation, it is imperative not to forget that “violence and victimization in prison are clearly significant stressors or traumatic events that could affect psychological well-being” (Listwan et al., 2010, p. 49 1142). Listwan et al. (2010) conducted a study examining whether victimization yielded psychological distress and whether social support can mitigate psychological distress. This cross-sectional study interviewed 1,616 offenders that had been recently released from prison. Victimization was defined as direct victimization, witnessing victimization, and perceptions of threat and coerciveness that occurred during offenders’ most recent prison sentence. Social support was defined as the number of people the inmate relied on. Higher levels of victimization were associated with greater psychological distress and greater social support was associated with less psychological distress. These findings were mutually exclusive, as Listwan et al. (2010) found no evidence to suggest social support reduced the psychological distress correlated with victimization. Inmate Dynamics and the Role of STGs When evaluating the use of administrative segregation over the alternatives previously discussed, dynamics occurring between inmates within a prison population must be considered. Although evidence was provided in BCCLA v. the Government (2018) regarding the presence of security threat groups (STG) in Canadian prisons, the judge determined that alternative methods could address dynamics between inmates and STGs. The judge stated that a logical alternative for segregation with the purpose of protecting an inmate’s own safety is to segregate the inmate from those that want to harm him rather than segregating him from all other compatible inmates. While this is ideal, in reality, determining compatible inmates can be difficult. Although intelligence departments, support staff, and correctional staff can collect information pertaining to this alternative, it does not deal with real-time STG activities. For 50 example, if an inmate has a drug debt with a particular STG and is segregated from known members and associates of the STG, the remaining inmates he can interact with may not remain compatible. Inmates that are members or associates of the STG may not be identified and could have an opportunity to commit an assault if the debt is not paid. Also, inmates that are not associated with the STG may be enticed to commit the assault on behalf of the STG in an attempt to be recruited by the STG, earn money, or to acquire drugs. Thus, it is not necessarily possible to determine which inmates can interact with a targeted inmate while maintaining safety and security. This is especially true when considering changes regarding the recruitment or prevalence of STG inmates in Canada. While examining the characteristics of federally incarcerated inmates, Boe et al. (2003) found gang affiliation among CSC inmates increased from 11% to 14% between 1997 and 2002. A Canadian study by Ruddell and Gotashall (2011) examined the results of intake assessments of 18,075 inmates admitted to federal institutions between January 2006 and August 2009. A total of 1,726 inmates (9.5% of the sampled population) were identified as gang members at the time of the intake assessment. While due diligence requires CSC to identify STG inmates upon admission to federal corrections, this does not account for membership occurring while incarcerated. Because of the ability for the prevalence of STG members to grow with recruitment, inmate gang members and associates cannot be ignored while discussing administrative segregation. Ralph and Marquat (1991) analyzed the role prison gangs had within Texas prisons. Nine gangs (an STG with over 50 members) were identified in the Texas prison system, with 2407 members among them. Institutional violence committed by gang members included murders, assaults with weapons, assaults, and sex assaults, where each category was measured 51 separately. The data was collected over three different time periods that were characterized with varying levels of gang activity: prior to 1984, 1984-1985, and post-1985. Prior to 1984, there was little violence attributed to gang activity. This was attributed to the use of prison unit tenders, which are select inmates that assisted guards in enforcing rules and maintaining order. Between 1984 and 1985, where the tenders were removed, a power vacuum was created and a gang war was initiated. After 1985, the prison system enacted specific gang suppression tactics. The first period was characterized as being low in all forms of prison violence. That being said, the prison unit tenders often maintained order through intimidation and acts of violence. Although one could argue this violence would not be as severe as murders, assaults with weapons, or a sex assault, they would be considered assaults through a modern lens. The period between 1984 and 1985 demonstrated a significant increase in gang violence. Murders and assaults with weapons virtually doubled when compared to pre -1984, while assaults and sex assaults decreased. It was speculated by Ralph and Marquat (1991) that this may be a result of under reporting by correctional staff, where less serious acts of violence were underreported due to the increase in serious violence occurring at the same time. The increased quantity of more serious acts may have downplayed the requirement to report less serious violence. After 1985, there was a decrease in all forms of gang-related prison violence, with the lowest rates of murder, assaults, and sex assaults. During this time, administrative segregation was heavily utilized as a gang suppression tactic, where by all identified STG members were placed under administrative segregation, with 1,500 of them admitted in 1991. The significant reduction in in-custody murders was attributed to the use of administrative segregation (Ralph & Marquat, 1991). It is important to note that the use of administrative segregation did not 52 completely prevent murders from occurring; the use of segregation only slowed the determined inmates down. For example, inmates climbed the razor wire barriers separating segregation yards or attacked inmates through small spaces in the cell doors in order to carry out a hit. The motivation for inmates to commit violence should be taken seriously when considering reasonable alternatives for the use of administrative segregation. Ethical Frameworks Since policy decisions are complex and involve a consideration of multiple factors, ethical frameworks may serve as one basis for making a reasonable decision. In the context of segregation where the literature is divided and greater research is needed, ethical frameworks may be an appropriate tool to help determine the best course of action that most aligns with Canadian values. Ethical considerations force a decision maker to examine all possible aspects surrounding a decision to determine rightness and wrongness, rather than relying on a single factor or perspective. Consequentialism is an ethical framework that is focused on the outcome of an action. If the outcome of an action is considered ethically desirable, then the action is considered to be justified under this framework. This concept is commonly referred to as the “ends justify the means.” The consequentialist framework justifies a sanctioning of human rights when a costbenefit analysis determines it will result in a greater well-being for the individual (Birgden & Perlin, 2008). This framework also considers the protection of community rights a greater priority than an individual’s rights (Birgden & Perlin, 2008). Ward and Salmon (2009) exemplify the application of a consequentialist framework to correctional policy with a therapeutic 53 intervention utilized for sex offender rehabilitation. If a violent sex offender has caused insurmountable harm and through rehabilitation and programs, becomes aware of this harm, develops the ability empathize for the victim, and truly accepts responsibility for his actions, it is reasonable to assume this will place the offender at risk for anxiety, depression, or some psychological distress. Although this distress is commonly foreseen, it is more of a regrettable side effect rather than an intentional infliction of suffering (Ward & Salmon, 2009). The deontological ethical framework is more concerned with the process rather than the outcome. The deontological framework argues that human rights can never be violated under any circumstances (Birgden & Perlin, 2008). Birgden and Perlin (2008) exemplify this by considering a mentally-ill individual refusing treatment. The consequentialist framework argues that treatment should be forced on the individual as the benefits (e.g., individual well-being, no longer a burden or risk to the community) outweigh the costs (e.g., negative side effects of treatment). On the contrary, the deontological framework supports the individual’s right to autonomy and argues that the decision should be respected at the expense of the individual and community well-being (Birgden & Perlin, 2008). In regards to administrative segregation, a consequentialist framework would support its use as dictated by policy, as it will increase the safety of a specific individual or the safety of the prison community. A deontological framework would argue administrative segregation restricts the rights of inmates and the risk of psychological harm does not justify any potential benefits for the inmate or prison. Administrative segregation, however, is more complex due to the contradicting findings within the literature, thus neither framework may address the ethical dilemma. A deontological approach does not justify the abolition of administrative segregation 54 as the literature on psychological harm does not provide indisputable evidence that conditions of confinement are the culprit for emerging mental health issues. Similarly, a consequentialist approach also provides limited ethical guidance because there is evidence that suggests psychological harm is a risk and alternatives to administrative segregation may be employed to enhance the overall well-being of an inmate or the collective security of an institution. In order to extend the usefulness of ethical frameworks concerning judicial decisions, alternative frameworks are worth examining (Bersot & Arrigo, 2010). Therapeutic jurisprudence is a more recent framework that has generated interest from the law and social sciences since the early 1990s (Winick, 1997). Considered a form of consequentialism, Winick (1997) describes therapeutic jurisprudence as the systematic study of the law’s therapeutic or anti-therapeutic impact. There is an assumption that the various actors of the legal system can have a positive or negative effect on the well-being of individuals. Thus, therapeutic jurisprudence strives to maximize positive therapeutic consequences and minimize the negative anti-therapeutic consequences. This does not mean that therapeutic and antitherapeutic consequences experienced by individuals are the most important considerations, as a law may produce anti-therapeutic consequences which are justified with consideration of other collective goals of the community (Winick, 1997). Therapeutic jurisprudence does not suggest that therapeutic considerations must be the highest priority, but demands reasonable awareness to provide “a more precise weighing of competing values” (Winick, 1997, p. 191). Bersot and Arrigo (2010) conducted an analysis of the underlying ethical frameworks guiding various U.S. court decisions regarding punitive solitary confinement. There was an overwhelming reliance by the courts on a consequentialist framework, where the potential for 55 psychological harm experienced by an inmate in punitive solitary confinement was dismissed in favour of the perceived effectiveness solitary confinement has on deterring undesirable inmate behaviour. Because there is literature demonstrating the risk of psychological harm in solitary confinement and the questionable effectiveness of punitive solitary confinement as a management strategy, Bersot and Arrigo (2010) believe the courts should apply therapeutic jurisprudence in determining the ethics of punitive solitary confinement as a sanction. Because therapeutic jurisprudence considers the psychological and physical well-being of individuals, Bersot and Arrigo (2010) recommended that the principles under therapeutic jurisprudence are better suited for judicial decisions regarding restrictive housing, as these decisions require the consideration of more factors that cannot be addressed by consequentialism alone. If applying therapeutic jurisprudence to administrative segregation, then psychological harm, the safety and security of the institution, alternative sanctions, violent victimization, and gang activity must be considered for an ethical justification. While psychological harm occurring from the conditions of confinement may be a risk for an inmate that has a hit on them, there is also a risk that failing to admit them to administrative segregation will result in violent victimization, which poses the risk of physical and psychological harm. Also, a violent incident can negatively impact other inmates by heightening the sense of fear in the environment, as well as for responding staff that must resolve the incident. While the latter considerations may outweigh the risk of psychological harm, it does not mean that this anti-therapeutic consequence of administrative segregation is simply ignored. As seen with the 2017 policy, the risk is mitigated as much as possible by providing 2 hours of yard time, additional shower time, healthcare services, mental health services, and personal cell effects to mitigate the risk of 56 psychological harm. Also, the 2017 CSC policy ensures that correctional staff must take active measures in developing a reintegration plan to have an inmate released as soon as it is safe. The recent BC Supreme Court case, BCCLA v. the Government (2018), appears to have applied a deontological ethical framework in arriving at its final decision. Based on the literature that suggests administrative segregation poses a serious risk of psychological harm, the judge deemed the mere process of administrative segregation was not justified as a means of enhancing the safety and security of individuals and the institution as a collective whole. The deontological framework, however, does not address the complexities of the circumstances initiating an administrative segregation placement such as the role of security threat groups, maintaining prison order, and addressing inmate victimization. Without considering these issues, a deontological framework is limited in providing ethical guidance. In addition, the alternatives currently in place for administrative segregation, such as institutional transfers, were determined by the judge as adequate for all inmates that would otherwise be segregated beyond the 15 days. While institutional transfers have shown to alleviate the need for some administrative segregation placements, a considerable amount of time and effort is necessary to find a safe destination institution and transfers can also have negative consequences such as removing an inmate from community supports. Also, the evidence suggesting psychological harm does not occur as a result of the administrative segregation environment was presented in court and the methodological weaknesses of these studies were discussed with considerable detail. Yet, the evidence suggesting psychological harm does occur did not receive the same level of detailed criticism, despite having similar issues concerning methodological weaknesses. 57 Therapeutic jurisprudence is an ethical framework that is able to consider a greater range of factors before policy decisions are made. The use of administrative segregation extending beyond 15 days is a complex issue that requires the weighing of multiple factors in the development of relevant policy. Because therapeutic jurisprudence is focused on the physical and psychological well-being of individuals, it will include aspects of both deontological and consequentialist ethical frameworks. Although therapeutic jurisprudence considers the psychological harm posed by administrative segregation, it would not be the most significant factor in determining policy. Therapeutic jurisprudence would require a more comprehensive review of all literature relevant to the use of administrative segregation, such as STGs, prison violence, staff-inmate interaction, and psychological harm occurring from other aspects of prison life rather than only the literature regarding psychological harm occurring from conditions of confinement in segregation. In addition, the methodological limitations found within the literature should be a part of this comprehensive review. Therapeutic jurisprudence must consider the overall well-being of an inmate, which requires the literature and statistics regarding the prevalence of prison violence, the psychological impact of prison violence, and the impact that prison violence has on the rehabilitation potential of inmates. Thus, administrative segregation can be seen as a management tool with therapeutic benefits, such as the enhanced physical safety of an individual. At the same time, it may be viewed as antitherapeutic in that psychological harm may result under certain conditions of confinement. The goal of therapeutic jurisprudence is to implement possible measures for administrative segregation to enhance inmate safety while mitigating the risk of psychological harm. 58 Recommendations It is not possible to house offenders and eliminate all risk. Like all organizations, CSC must manage risk rather than be completely adverse to it. However, for organizations managing people, risk management is extremely complex. This complexity cannot be addressed by choosing a strategy that limits one area of risk without considering its impact on other areas of risk. Risk management strategies must be developed that impact multiple risks simultaneously instead of focusing on one risk as an exclusive entity. Rather than attempt to justify or condemn the current administrative segregation practice under a complex framework of therapeutic jurisprudence, it is more appropriate to apply the framework in such a way that maximizes therapeutic outcomes while minimizing anti-therapeutic outcomes. This approach requires prison to be viewed as a community rather than a collection of warehoused individuals. Dvoski and Spiers (2004) describe the prison community to consist of inmates, correctional officers, administrators, medical and clinical personnel, and other employees on contract. Despite the inherent difference in power, different members of these groups rely on each other. For example, inmates rely on prison staff to maintain order and prison staff rely on inmates as a labour force (Dvoski & Spiers, 2004). When determining how to modify administrative segregation, it is important to consider all members of the prison community and what purpose administrative segregation serves for each group so that the risks and benefits of administrative segregation are evaluated appropriately. . Some of the most prominent critics of administrative segregation suggest reforming long-term segregation, rather than completely abolishing the practice. Jackson (2015) has advocated for prisoner rights for over 40 years, with much of the criticism directed towards 59 administrative segregation. In Jackson’s (2015) description of the ideal practice for administrative segregation, a 90-day limit was considered sufficient. While Jackson (2015) argued this 90-day limit is a conservative suggestion, he stated that the implementation of greater procedural safeguards in the form of an increased review process and oversight was more important than a hard-cap reduction on placement durations. Despite these suggested time limits for duration of administrative segregation placements, the court ruled that a 15-day limit is to be complied with. When the duration of administrative segregation has been addressed, conditions of confinement of a segregation unit can be reformed. Other jurisdictions have reformed administrative segregation or solitary confinement to better reflect the interests of the prison community. For example, Maine developed a Special Management Unit where otherwise completely segregated inmates are permitted to interact with other inmates in certain group settings such as mental health or religious practice (Bennion, 2015). Considering that “more severe sensory restriction, the presence of noxious stimulation, and longer duration of the sensory deprivation experience have all been associated with an increased risk of adverse psychiatric consequences” (Grassian, 2006, p. 346), it is imperative to mitigate this risk while still maintaining the safety and security of the institution. The policy implemented in 2017 for administrative segregation within CSC manages the identified risks adequately. The development of this policy recognized the potential risk for an inmate to develop psychological harm when confined to a single cell for 22-24 hours and mitigated this risk with reforms to the segregation routine. For example, inmates are entitled to a longer recreation period that does not include the time that is allotted for a shower and inmates’ personal cell belongings are provided within 24-hours instead of within 5 working 60 days. To mitigate the risk of unnecessarily being admitted to segregation, the policy requires a more rigorous assessment of an inmate prior to authorizing a segregation placement. The procedural safeguards employed ensure that reasonable alternatives are considered, mental health of the inmate is considered, and if the inmate is Aboriginal, cultural considerations are made (e.g., contacting the Elder or Aboriginal Liaison Officer). The policy mandates comprehensive reviews of the circumstances revolving around an administrative segregation placement at multiple points of the duration, which ensures that the placement is still required over time, and the priority is to move the inmate into general population as soon as possible. Lastly, the policy prohibits the use of administrative segregation for inmates with a serious mental illness. While this policy is sufficient in balancing the risks of segregation, it requires some improvements because of the introduction of a 15-day limit and the inability to segregate mentally ill inmates, a group that may be more vulnerable to victimization from other inmates (Blitz et al., 2008). Despite the recent changes to CSC policy, further efforts could be made to mitigate the concerns associated with administrative segregation. First, administrative segregation should not result in complete isolation from other inmates. A segregation unit should be equipped with the ability to physically isolate an inmate from others in the most humane way practical when required as per section 31 (3) of the CCRA. This isolation should not be a standalone unit, but consist of specific cell blocks or ranges that are integrated into a larger transitional unit, similar to what was implemented by the Mississippi Department of Corrections. While inmates housed in the transitional unit are collectively segregated from the general prison population, they can have social interaction among each other. This will result in the creation of a 61 subpopulation. Because a subpopulation will likely be smaller than the general population, staff will be more efficient at controlling interactions among inmates, which will reduce the duration of placements under the conditions of confinement of traditional administrative segregation. In addition, resources can be prioritized to increase the environmental safeguards for suicide prevention. Some suggestions to prevent suicide through environmental design within a prison setting include installing larger vision panels (cell windows) to improve the ability of correctional officers to conduct security rounds and installing receding cell lights and smoke detectors into the ceiling to limit hanging (Kovasznay et al., 2004). There are some factors to consider when implementing a transitional unit. Although a transitional unit allows inmates to associate in small groups, they are still isolated from the majority of inmates and they have little or no choice with whom they can interact with, which may be stressful. For this reason, it is important that the transitional unit functions in such a way that encourages inmates to reintegrate into the general prison population. Also, as discussed in BCCLA v. the Government (2018), the failure in the historical use of transitional units was attributed to a lack of resources and inadequate staffing. CSC would be required to invest resources into properly staffing a transitional unit that allows for social interaction, rather than allowing it to function only as a traditional administrative segregation unit. Second, more training is required for correctional officers staffing a unit with administrative segregation. Another variable that may impact the extent to which administrative segregation is harmful is the interactions between staff and inmates. Inmates housed in restrictive housing are “uniquely susceptible to verbal and physical abuse by staff” (Arrigo & Bullock, 2008, p. 637). Rogers (1990) argues the psychological harm regarding 62 administrative segregation is more likely related to the treatment by staff rather than the environment. Bonta and Gendreau (1990) argue that psychological distress can occur in the most humane prison setting if correctional staff members manage the inmates capriciously. Suefeld et al. (1982) argues that the varying treatment of offenders likely has a greater impact on the inconsistent findings within the literature, even more so than the varying conditions of confinement. This assumption is based on court testimonials from inmates claiming abuse from correctional staff and a higher frequency of complaints regarding treatment by staff rather than the conditions of confinement from inmates in solitary confinement (Suefeld et al., 1982). While the psychological distress of inmates caused by poor treatment from correctional staff may be intentional, there are instances where it is a result of poor decision making or a lack of training. For example, an inmate in a mental health crisis may behave in a manner that is interpreted as aggressive and a less effective response is chosen to resolve the crisis due to a lack of training in mental health training. Resources for correctional officers working in administrative segregation should be prioritized to the same extent as other specialized units within CSC. Dvoski and Spiers (2004) suggest correctional officers are placed in difficult situations, often without adequate training. Furthermore, the extent to which a correctional officer acts as a therapeutic agent must be acknowledged (Dvoski & Spiers, 2004) and the training provided must reflect this role. The Emergency Response Team (ERT) and Crisis Negotiators (CN) are specialized units within CSC that are comprised of select staff. These units recruit officers who possess specific knowledge and skills sets and provide these officers with additional training. Segregation units should require additional training for correctional officers that focus on de-escalation and communication strategies for individuals experiencing a mental 63 health crisis, as well as improved training for medical emergencies, self-harm, and suicide attempts. Training should be beyond standard first aid and include more advanced emergency trauma care. Lastly, more training on the use of force should be provided to correctional officers. A greater level of training in use of force tactics will reduce the risk of harm during a security incident. By reducing this risk, conditions of confinement that enhance security at the cost of greater inmate isolation can be reduced. An example of this would be limiting the requirement to apply restraint equipment (i.e., handcuffs, leg irons) to all inmate movement within administrative segregation. Gilbert (1997) argues that decision making skills must be developed with appropriate training, rather than relying on correctional management to discipline correctional officers who make poor decisions. These decision making skills are imperative to run a safe and humane administrative segregation unit. Third, similar to the recommendation from the Ashley Smith Inquest for all institutions, 24 hour healthcare staff should be provided in the segregation/transitional unit. Not only will this provide an atmosphere similar to the Regional Treatment Centres that manage mentally ill offenders, which have 24 hour nursing staff, but these healthcare staff can be redeployed to general population units as a secondary responsibility. Importantly, this would benefit all units in federal institutions given the introduction of more lethal opiates (e.g., fentanyl) into federal prisons. Lastly, although external oversight is needed, some autonomy must be given to correctional staff in managing a segregation/transitional unit. For example, policy that mandates all offenders must be transferred from a cell to the recreation area in restraints should be changed to account for correctional officer discretion. Although restraints may be 64 necessary for inmates jeopardizing the safety and security of the institution, it is likely not necessary for an inmate segregated for fear of his own safety. Correctional officers must be given the autonomy to use their discretion when necessary, rather than a blanket policy that applies to all inmates in an administrative segregation placement. Gilbert (1997) argues the discretionary power of correctional officers is crucial in maintaining prison order. The circumstances in prison require flexibility, reasonable judgement, sensitivity to others, appropriate use of force, and in some cases, the deviation of formal policy (Gilbert, 1997). Furthermore, operational policies and strict hierarchical supervision discourages the use of discretion, which limits the ability to resolve minor problems that may evolve into major incidents (Gilbert, 1997). “Even within administrative segregation units, correctional officers can effectively use their training and experience to realize positive therapeutic outcomes with very difficult inmates” (Dvoskin & Spiers, 2004, p. 52). In support of this, Dvoskin and Spiers (2004) collaborated with correctional officers in the design and implementation of a behavioural treatment system for segregated inmates, which included the identification of behavioural reinforcements, the development of schedules, and the assessment of progress for inmates housed in administrative segregation. This system resulted in a dramatic drop in security incidents. The trust placed on correctional officers by management must be reestablished to handle a complex situation of administrative segregation. While security and rehabilitation are two goals of CSC, the preservation of life of all those in the institution is a high priority. The preservation of life will not be achieved by solely focusing on either security or rehabilitation, CSC must blend these two goals in order to maintain safe institutions. 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